To
better understand the legal status of Judea and Samaria under
international law consider the following:
AXIOM:
In 1967 Israel liberated
occupied Jewish Palestinian territories. This was done not only for the
enemies of Israel, but
also to appease Allies and a majority of Israelis. However, the world
community, and the enemies of Israel hold
forth that during the Six Day War, Israel “captured”
the same liberated Jewish Palestinian territories. Furthermore, Israel is
accused of then installing its’ “settlers” with impunity and in obvious
violation of international law. Which is true, the AXIOM of 1967 or the current
interpretation of international law by the enemies and critics of Israel? For
obvious current political and diplomatic reasons, the truth has been swept
beneath a new wave of anti-Semitism.
However, in order to clarify
the legal status of Judea and Samaria under
international law, we
only need to examine HISTORICAL DOCUMENTS which many have chosen to forget or
ignore. Upon examination of said HISTORICAL DOCUMENTS the only factual
conclusion to arrive at is the critics (whether Arab, American, European, or
the Israeli Extreme-Left) who accuse Israel of
“occupation” are wrong.
Prof.
Eliav Cho'hatman, lawyer and lecturer at the Graduate Institute of Law
"Shaare Mishpat” wrote: "When I heard of two states for two peoples,
I understood why ... Balfour and San
Remo”. To understand this issue, we must
go back to November
2, 1917. At that time, Lord Balfour, Foreign
Minister of Great Britain, in writing agrees with Chaim Weitzman, then
president of the World Zionist Organization. Lord Balfour, in an official
letter to Lord Lionel Walter Rothschild, (honorary president of the Zionist
Organization of England) writes that the UK is
in favor of the establishment of a national home for the Jewish people in Palestine. This
is the famous "Balfour Declaration" when in the aftermath of World
War I, the League of Nations entrusted Britain with
a mandate over Palestine.
Three
years after the Balfour Declaration in April 1920, a conference is held
in San Remo,
during which the great powers share the "spoils of victory”, namely the
conquered territories during the war. At this conference, it was decided to
introduce the 1917 Balfour Declaration as part of the Agreement giving it the
force of International Law, The San Remo Treaty of April 1920, confirmed by the
August 1920 Treaty of Sevres Article 95 and the Treaty of Lausanne (its terms
are in effect in perpetuity) and the British Mandate for Palestine as
trustee for the Jewish people. This decision confirms the international
recognition of the Jewish right to “self-determination” in Palestine
without boundary restrictions. Furthermore, Britain is
entrusted and obligated to work towards the realization of this statement
(Balfour. note): “to found a national home for the Jewish people in Palestine."
Furthermore, and of great importance, The San Remo Treaty of April 1920, and
documents thereto, DID NOT state of any other nation, entity or people; ONLY
the Jewish people were allocated ALL of
Palestine (about 46,000 sq. mi.) At the same time The Arabs-Muslims were
allocated over 6 million square miles of territory with a wealth of oil
reserves.
It must
be noted that including the incorporation of the Balfour Declaration in the
Palestine Mandate of the United Kingdom, the text is the same
international resolution supported by 52 member countries of the League of
Nations, and the United States, which becomes a member of the
international organization a few years later and accepted by the United States
Congress and signed by the President.
In
paragraphs 5, 6 and 7 of the Protocol of April 1920 San Remo, we
read: "No territory of Palestine will be sold or
leased or held in any way under the control of the government of any foreign
power." Also: "The Administration of Palestine, while ensuring that
the rights of other parts of the population are not altered, shall facilitate
Jewish immigration under suitable conditions and encourage, in cooperation with
the Jewish Agency The dense settlement of Jews on the land (of Palestine with
no boundary restrictions), including State lands and waste lands not required
for public purposes."
Furthermore, the text states:
"The Administration of Palestine is
responsible for the adoption of a law on nationality. Must be included in this
law provisions framed so as to facilitate the acquisition of Palestinian
citizenship by Jews who acquire permanent residence in Palestine." At that
time, it must be remembered, Palestine is
not just the West Bank of
the Jordan, but
also, and most importantly (at 70% of the territory) the East Bank, where today
is located the new State of Jordan. Per the above stated documents, Jordan is
in fact unlawfully occupying land which belongs to Israel.
*Mi'kmaq
of the British Empire: (*Treaties
signed between the British
Empire and the Mi'kmaq people.
The first treaty was signed in 1725 after Father Rale's War. The final treaties
of 1760-61, marked the end of 75 years of regular warfare between the Mi'kmaq ...)
What
happens next is related to internal political changes in Britain and
the election of a government hostile to the creation of a Jewish homeland
throughout the territory of Palestine. Britain, having
clearly supported the conclusions of the San Remo Conference of April 1920,
decides to change its’ mind. Britain begins
to weave tenuous diplomatic ties with the Arab countries surrounding the area
of Palestine and
with several Arab leaders in an effort to control natural resources, such as
oil. It was after this rapprochement in 1921 that Transjordan is
created. Transjordan is
a semi-autonomous state compared to the British, led by Abdullah Hussein, son
of Sharif Hussein of Mecca Ibn Ali, and great-grandfather Abdullah, the current
king of Jordan.
In
regards to the West bank of the Jordan River, and
the West Bank - Judea and Samaria -
nothing changed: these regions are still part of the territories over which
should be established the Jewish national home.
According
to many lawyers, including Prof. Dr. Cho'hatman with Talya Einhoren and
American lawyer Eugene Rostow, (one of the drafters of the famous U.N.
Resolution 242), the Partition Plan of 29 November 1947 which is non-binding
with no legal standing, DOES NOT change the legal right of Israel either.
Indeed, having been adopted by the U.N. General Assembly and NOT by the
Security Council, the Partition Plan cannot be considered legally binding. At
most, it is only a recommendation that only obtains legal validity upon
endorsement by the parties in question: The Jews and the Arabs. The Jews
accepted it provided the Arabs accepted it also. It must be noted, since the
Partition Plan was rejected by the Arab powers, its status remains protocol with
no legal implications..
For
other lawyers, ignoring documented claims, the non-binding Partition Plan has
somehow transformed the Judea and Samaria territories
into a status which remains cloudy. On one hand, they are not part of the state
of Israel created
in 1948. Yet, Judea and Samaria do
not belong to Jordan which
occupied the territory during the War of Independence until the 1967 war
liberated it.
The
Jordanian occupation
Question; Did the Jewish people lost
temporarily the rights to Judea and Samaria with
the Jordanian occupation between 1948 and 1967? For many lawyers, the answer is
no. Jordan formally
annexed the West Bank on April 24, 1950.
However, the annexation was held illegal and void by the Arab League and
others. Jordan proclaimed
sovereignty of the territories of which the support of only two
countries, Britain and Pakistan.
Moreover, the same Jordan decided
in 1988 to abandon its sovereignty in Judea and Samaria.
Incidentally, the term West Bank would
therefore no longer be needed it is called Judea and Samaria.
Does
the dissolution of the League of Nations,
which was replaced by the UN, and the end of the British Mandate for Palestine cause
any change in the rights of the Jewish people to their land? Again, the answer
is no because, under section 80 of the UN Charter, "nothing in this
Chapter shall be construed as affecting directly or indirectly in any manner
the rights whatsoever of any states or any peoples or the terms of existing
international instruments to which Members of the Organization may be parties.
" Clearly, this means that the UN is committed in 1945 to protect the
legitimacy of the Jewish land rights established by the League of Nations
based on the April 1920 San Remo International Agreement.
For
Professor Eugene Rostow, mentioned above, the UN CHARTER above clearly holds
that "the right of the Jewish people to settle in the land of Israel has
never been interrupted on all the territory west of the Jordan
River, and since a peace agreement has not and will not
be signed between Israel and
its neighbors.” He later wrote that "Israel has
an undeniable right to establish settlements in all the territory of the West
Bank aka Judea and Samaria."
No
unilateral approaches
Did the Oslo agreements
affect the status of Judea and Samaria under
international law point of view? Again, the answer is to be found in the texts
themselves. Indeed, it is stated in the preliminary agreement in 1993 that the
final peace agreement will be signed by both parties "through negotiations".
The agreement called Oslo II, ratified in 1995, provides for its part that
neither side "does not initiate or commence proceedings can change the
status of the West Bank and
the Gaza Strip to the end of negotiations on the final peace agreement."
In other words and clearly stated, ANY unilateral approach - such as the
announcement in September by the Arab-Palestinians of an independent state -
will therefore be in stark contrast not only with the Oslo agreements, (which
may be null and void), but also with resolution 242 of the UN that supports
each party has the right to "live in peace within secure and recognized
borders." The borders of a Palestinian state proclaimed are of course far
from being "secure and recognized" the point of view of Israel ...
Incidentally, Resolution 242 does not speak of at all about
''Arab-Palestinians'', but only of existing states, that is to say, Jordan,
Egypt and Syria.
The
above text and documents, written in black and white and dating, for some, a
century old are easy to read and understand. Yet, it seems hardly anyone
in the Prime Minister's office, the Minister of Foreign Affairs, or that of
Hasbara, has taken the time to build a strategy based upon these
documents. Documents which clearly prove Israel is
NOT the colonial and occupying power it is accused of being since 1967.
Moreover,
when considering the media archives that preceded the Oslo Accords, it is
evident that the official Israeli narrative concerning the Israeli presence in
the West Bank aka
Judea and Samaria was
much less ''scared'' than it is today. Until 1993, Israel gave
the impression of much less need of justification for founding Jewish
settlements beyond the Green Line (Armistice Line). Until that time, Israel did
not seem to plead for the international community, and the Arab world in
particular, to grant Israel the
ultimate favor of keeping the famous "settlement blocs."
According to Prof. Eliav Cho'hatman, lecturer at the Graduate Institute of
Law "Shaare Mishpat”: “there is no doubt that the Oslo Accords marked the
starting point of this attitude” which he deemed as
"catastrophic." He explained, “Until then, our leaders did not
hesitate to brag of our rights over all the land of Israel from the point of
view of international law, but since the agreements were signed, only security
patterns are referred to beg that part of these territories we are entitled to
remain in our hands." Prof. Cho'hatman says he sent to Prime Minister
Binyamin Netanyahu during his first term (1996-1999) his work on the above, but
regrets such effort was to no avail.
Do not
just be right, but also know.
There are other arguments for the legitimacy of the Jewish presence
in Judea and Samaria.
For example, the fact these territories cannot be considered ''busy'' since
they do not belong, de
facto, to an enemy state. Nor can be considered the inconsistency of the
term ''1967 borders”, which are NOT “borders” but the cease-fire line between
Israeli and Jordanian armies at the end of the War of Independence of
1948. Based upon Documents and International law, the only fully
supported rational legal conclusion is Israel has
the right to full expectations of “TERRITORIAL INTEGRITY”. As such, and
under International Law, any imposition by force or coercion of a border change
is “an act of aggression”.
Yet the
above arguments are not raised. The reasons? They are many: Israel and
the Israelis became wrongly convinced themselves that they were a colonial
power and archives in the world will not be able to release this distorted
image. Also in Jerusalem, it
probably feels that right or not right, the world has already chosen sides. In
the corridors of the Foreign Ministry, it is even said that under international
law, "it is 99% opinion, and 1% policy of law." But in Israel, there
is another expression that says it is not enough to be right, but you must also
be smart. Thus, it is time now for the good of the State of Israel, to be
smart and to make the world know what is right. There is also the issue of
possession of which Israel is in possession
of the territory.
The Jewish and Arab
Refugee resolution
Since the late 1940's the
Arab States have expelled over a million Jewish people. The Arab States
confiscated Jewish assets, personal assets, businesses, homes and Real Estate
which amounts to over 120,000 Sq, Km (47,000 sq. mi.). The confiscated land is
about 6 times the size of Israel and with the other
confiscated assets it is valued in the trillions of dollars. The Arab States,
like the Nazis, could not then, and cannot now justify such
confiscation.
The State of Israel has
resettled the majority of the million Jewish families expelled from the Arab
countries in Greater Israel. The Arabs claim that about 600,000 Arabs were
displaced from their homes during the 1948 war. What seems to be forgotten is
the fact most of the Arab population abandoned their homes at the request of
the 5 Arab Armies who were sure to defeat the newly reconstituted Jewish State.
About 300,000 Arabs stayed.
Since
then the Arab and Jewish population has increased dramatically. Many new Arabs
have moved into the area and many new Jews from the Holocaust and other areas
have immigrated to Israel. It is
about time that the Arab countries that expelled over a million Jewish families
should resettle the Arab refugees in their vast lands (over 6 million sq. mi.
of 70% is vacant). Instead of funding weapons and war, the Arab countries
should utilize the funds to help the Arab refugees to relocate, build housing,
schools, commerce and industry and resolve this tragedy once and for all. This
simple solution will bring peace and tranquility to the region.
Edited
and modified by YJ Draiman
On the Question of the Legality of the Jewish Civilian
Communities in the Disputed Areas of Judea, Samaria and Gaza
Within the context of international law, we draw attention to the Balfour
Declaration of 1917. The text of the Declaration, as noted by the Palestine
Royal Commission Report of 1937, p. 22, had been approved by U.S. President W.
Wilson prior to its publication. Indeed, the Inquiry Commission established by
President Wilson affirmed “that Palestine should
become a Jewish State” and that “Palestine...was
the cradle and home of their vital race”, a succinct statement of the essence
of the principle of self-determination.
That document, issued by the British Government and later to serve as the basis
for the League of Nations Mandate approved in 1922, refers on the one hand to
“a National Home for the Jewish people in Palestine” while
on the other, refers to “non-Jewish communities in Palestine”.
The distinction is not coincidental. National and historical rights are
recognized clearly in the context of the Jewish people whereas the opposing
parallel, that the land in question ‘belonged to an Arab people’ as it were,
was not mentioned and purposefully ignored. What was included in the Balfour
Declaration and the Mandate were the “civil and religious rights” of
non-specified “non-Jewish communities”, without reference to Arabs at all.
Furthermore, the aforementioned Mandate text acknowledges that “recognition has
thereby been given to the historical connection of the Jewish people with Palestine and to
the grounds for reconstituting their national home in that country”. In Article
6, the administration apparatus of the Mandate, a temporary form of government,
was charged with facilitating and encouraging “close settlement by Jews on the
land, including State lands and wastelands not required for public purposes”.
It is worthy to note that the United States House of Representatives and the
Senate adopted resolutions supporting the Mandate, on June 30, 1922 and May 3, 1922
respectively. President W. Harding signed a proclamation on September 21, 1922 that
stated that “the United States of
America favors the establishment in Palestine of a
national home for the Jewish People...and that the holy places and religious
buildings and sites in Palestine shall
be adequately protected”. These acts reinforced the position fully understood
that the rights accruing a national grouping belonged solely to the Jewish
people and that non-Jewish elements could claim but protection for singular and
individual buildings and sites.
What cannot be ignored is the historical connection of the Jewish people to
this Land. The continuous presence of Jews in their homeland over many
centuries under Jewish independent rule (tribal federation and monarchy) and
centuries of foreign rule is itself a proof of right and legality. This
presence included, indeed primarily so, the areas known as Judea, Samaria and Gaza. This
presence was maintained despite destruction of political sovereignty,
conditions of exile, oppression and persecution by the Babylonian,
Greek-Syrian, Roman, Persian, Arab and Ottoman Empires. Despite the early
favorable attitude of the British Empire, the pursuance of the internationally
recognized goals of the Mandate necessitated acts of national liberation akin
to those of the American Colonies in 1777, as well as other countries such as
India, Ireland and African nations. This struggle for freedom forced Great
Britain to turn to the United Nations
in 1947.
The resolution adopted by the General Assembly of the United Nations on November 29, 1947 and
accepted by the governing institutions of the Jewish People is to be seen as
the fountainhead of the recognition of Israel as an Independent State
possessing sovereignty. In rejecting that resolution and in declaring war on
the nascent state of Israel, the Arab communities and neighboring states
severed all legal connection to claims they did or would, in the future, make.
In a sense, that rejection of the compromise proposal of partition revived the
full and inalienable rights of Jews to all the territories included in the
Mandate. These territories include Judea, Samaria and Gaza.
As a result of armed acts of aggressions, the Jordanian entity subsequently
conquered portions of the Palestine Mandate and Egypt
occupied the Gaza Strip district. The non-Jewish communities of the areas of
Judea and Samaria, never having expressed themselves in criteria of nationhood
and geo-political sovereignty previously, never established a state on this
territory following the 1947 Resolution and, in fact, requested, at the Second
Palestine Arab Conference convened in Jericho on December 1, 1948, that these
territories be enjoined to the Hashemite Kingdom. Indeed, a resolution of
unification was signed into Jordanian law on April 24, 1950, which purported to transfer
to the Hashemite Monarchy sovereign rights to those areas of Western
Palestine not under Israeli control following the 1948-49
War of Independence. That law negated the terms of international law, and, in
any case, was only recognized by Great
Britain and Pakistan.
In the matter of General Assembly Resolution 242, we refer you to the testimony
of Eugene V. Rostow who participated in the negotiations of that Resolution.
For example, in The New Republic issue of October 21, 1991, page 14, Mr. Rostow
treats the issue of illegality. He makes it plain that Jewish settlement in Judea and Samaria is
indeed legal, and that the Jewish right of settlement west of the Jordan
River is “unassailable”.
We now briefly address another point. The status of the areas of Judea, Samaria and
Gaza (YESHA) can in no way be conceived as being governed by the Fourth Geneva
Convention for the simple reason that they are not occupied territories as
defined in this document. Paragraph (6) of Article 49 of the said Fourth Geneva
Convention is irrelevant to the question at hand in that Article 2 stipulates
that the territory under issue must belong to a High Contracting Party. This is
not the case, as the territory under discussion did not belong to any such
Party. Furthermore, the drafting history of Article 49 was directed against the
practices of the Nazi regime in forcibly transporting populations. It would
border on the ridiculous to claim that Article 49 (6) which was fixed so as to
prevent a return of heinous Nazi practices of Judenrein should now be
understood as meaning that Judea, Samaria and
Gaza (YESHA) must become empty of Jews.
Moreover, the Convention does not and could not prohibit the establishment of
communities, towns or other civilian centers. Even government economic
incentives cannot be considered as “mass deportation” or “transfer”. Over 90
percent of the communities populated by Jews are located on state land, not
land privately owned by Arabs. Indeed, some of the communities are built on
land that was either owned by Jews prior to 1967 or purchased afterwards.
One last point. The basis for an Arab claim to Palestine, formulated
by the PLO which represents itself as the legal vehicle for that claim, is the
Palestinian National Covenant. This document can only be described as racist
and invalid on humanitarian grounds and unacceptable in international law. In
fact, a Palestinian identity has always been a tactical move by Arabs who
always viewed themselves as belonging to a greater Arab nation as in the case
of the request of the General Syrian Congress on July 2, 1919 “that there
should be no separation of the southern part of Lebanon [that is, the Palestine
territory] from the Syrian country”, a position repeated ever since as, for
example, by Yasser Arafat when he declared over the Voice of Palestine on
November 18, 1978 that “Palestine is southern Syria and Syria is northern
Palestine”.
In an interview with Matt Lauer on NBC’s The Today Show on October 1, 1997,
Secretary of State Madeleine K. Albright related to building in Yesha and said:
“I wasn't happy…I felt that going forward with those kinds of buildings was not
helpful. Mr. Lauer pressed her and stated: “ It's legal. “
And Albright admitted: “It's legal.”
The need for this legal commentary stems from the fact that Arabs aligned with
the PLO have announced that Jewish communities established in the territories of
YESHA are a priori “terrorist” in nature and are a form of “aggression”. Having
thus defined Jewish civilian in this way, Arabs make the claim that they are
defending themselves and are justified in using all means at their disposal
including shooting, bombing and stabbing such as has been used in this latest
wave of violence. We reject such an approach as immoral, illegal and
reminiscent of war crimes of the recent past.
Israel
is the only state established whose legitimacy was officially acknowledged by
the League of Nations
and the UN. The League of Nations
Mandate did not grant the Jewish people the rights to establish a national home
in Palestine
without boundary restrictions; it simply recognized a pre-existing right that
had never been surrendered or forgotten. The Jewish people had been sovereign
in their own land for 1,000 years before many were forced into exile. The
establishment of the state of Israel
did not represent a creation ex nihilo. These rights were upheld by the UN
under Article 80 of the UN Charter after the UN replaced the League
of Nations.
